21.2  Testing and Commissioning

21.2.1  The Contractor shall develop the Outline Commissioning Plan into the Commissioning Plan as set out in the [Works Requirements/Commissioning Requirements] and shall carry out all commissioning of the Facility in accordance with the Commissioning Plan as approved or not commented on by the Authority.

21.2.2  The Contractor shall provide to the Authority and the Independent Certifier not less than [ten (10)]36 Business Days notice of the anticipated date upon which the Contractor considers that a Facility will be in a condition to proceed with the Tests and the Contractor shall keep the Authority informed of any alterations to the proposed date and each Party will act reasonably in relation to any delays to the timetable notified.

21.2.3  The Contractor shall, not less than [twenty (20)] Business Days prior to the anticipated date upon which the Contractor considers that the relevant Facility will be in a condition to proceed with the Tests, confirm to the Authority the levels, timings and periods of deliveries of Contract Waste necessary for commissioning and testing of the relevant Facility.

21.2.4  Provided that the Contractor has complied with its obligations under Clause 21.2.3, the Authority shall procure the levels, timings and periods of deliveries of Contract Waste required under Clause 21.2.3. Such arrangements shall be made in accordance with the Contract Waste delivery requirements for such Contract Waste confirmed in the notice issued under Clause 21.2.3.  The Authority shall be kept informed as to the likely need for a further finite period of delivery of Contract Waste to the relevant Facility to allow for further Testing.  [For the avoidance of doubt, Non-Acceptance Deductions and Mileage Deductions may apply in respect of confirmed Contract Waste deliveries pursuant to this Clause 21.2 (Testing and Commissioning)37].

21.2.5  The Contractor shall be responsible for the handling and disposal of any Contract Waste delivered for the purposes of commissioning in accordance with the Commissioning Protocol38.

21.2.6  The Contractor shall under the supervision of the Independent Certifier undertake the Tests in accordance with the provisions of Schedule 11 (Tests).

21.2.7  When the Contractor is of the opinion that the relevant Tests have been satisfactorily passed it shall forthwith promptly notify the Independent Certifier and the Authority of the same.

21.2.8  The Parties shall procure in accordance with the Independent Certifier's Deed of Appointment that the Independent Certifier shall, within the period of [two (2)]39 Business Days of its receipt of the Contractor's notice given under Clause 21.2.7 either:

(a)  issue a Readiness Test Certificate and/or Acceptance Test Certificate (as appropriate) stating the date upon which the relevant Tests were satisfactorily passed; or

(b)  notify the Authority and the Contractor that the relevant Test or Tests have not been satisfactorily passed (a "Notice of Non Completion") providing a report setting out the respects in which it considers that such Tests have not been passed.

21.2.9  Representatives from the Authority, the Senior Lenders and the Independent Certifier shall be entitled to witness the performance of Tests.

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36  Time period may be amended if appropriate.

37  Deductions (and liquidated damages if relevant) may be considered on a project specific basis. However, the Contractor needs to be incentivised (e.g. through the Commissioning Payment) to deliver the full Service. Where a 'Commissioning Protocol' is proposed, the Contractor should suffer Deductions where it does not comply with its obligations therein.  A more flexible and collaborative position may be agreed to testing and commissioning and to waste deliveries in the Commissioning Period provided that there are sufficient remedies for the Authority if the Planned Service Commencement Date is not achieved. Where no service is guaranteed with deductions or a performance regime in Commissioning Period then evaluation of price should be based on the Planned Services Commencement Date (i.e. assuming no Service in the Commissioning Period).

38  Where the full Payment Mechanism applies during the Commissioning Period, the full performance regime applies but where a lower commissioning payment applies, then (provided the matters set out at the footnote to Clause 21.2.4 have been taken into account) the performance regime may be relaxed.

39  Time period may be amended if appropriate.